Photo of Amy Harwath

Amy Harwath

Subscribe to Amy Harwath's Posts
Contact:Read more about Amy Harwath

On November 8, 2021, Governor J.B. Pritzker signed into law an amendment to the Illinois Health Care Right of Conscience Act (the Act) that will prevent employees from relying on the Act to avoid employer COVID-19 vaccine or testing mandates. The amendment goes into effect on June 1, 2022.

Overview of the Illinois Health Care Right of Conscience Act

The Act was first passed in 1977 and was meant to protect from discrimination health care workers who participated in, or refused to participate in, the delivery or receipt of health care services that were “contrary to their conscience.”

Recently, however, some non-health care workers in Illinois have relied on the Act to claim an exemption from their employers’ COVID-19 vaccination or testing requirements based on the Act’s broad language prohibiting discrimination “against any person in any manner” who refuses to “obtain, receive or accept” health care services or medical care. In fact, several lawsuits have recently been filed by employees claiming that their employers’ policies violate the Act.
Continue Reading Illinois limits conscience-based vaccine objections, while other states allow them

On May 31, 2021, the Illinois legislature passed SB 672, a bill that amends the Illinois Freedom to Work Act, the state’s non-compete statute. Governor J.B. Pritzker is expected to sign the bill into law. SB 672 would apply to restrictive covenant agreements entered into after January 1, 2022, and introduces a number of new restrictions on not only non-compete covenants, but also employee and customer non-solicitation covenants.

One of the most significant aspects of the bill is that it codifies the rule set forth in Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327, which held that continued employment is not sufficient consideration for a restrictive covenant unless the employee remains employed for at least two years. Under SB 672, a restrictive covenant is supported by “adequate consideration” if (1) the employee worked for the employer for at least two years after signing a restrictive covenant agreement, or (2) the employer otherwise provided consideration adequate to support the restrictive covenant agreement, “which consideration can consist of a period of employment plus additional professional or financial benefits or merely professional or financial benefits adequate by themselves.” The bill does not define what type or amount of “professional or financial benefits” would be adequate.Continue Reading Illinois’ new non-compete restrictions expected to become law

At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.”  Although he has only been in office a short time, his administration is already taking steps to honor that pledge.  Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act.   The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress.  If enacted, the PRO Act will fundamentally reshape the American workplace.
Continue Reading Labor law under the Biden administration: A preview of the PRO Act

The release of the COVID-19 vaccine came as welcome news for employers. With it, however, employers will now confront myriad new questions about how the vaccine will affect workplace terms and conditions. The foremost question across all sectors has been simple: Can and should employers mandate that their employees get vaccinated? While issuing a mandate may seem appealing, doing so creates a variety of both legal and practical risks that, for many businesses, may militate in favor of a voluntary compliance program.

Faced with this reality, many employers have begun exploring incentive-driven voluntary programs, including offering additional PTO, gift cards, and even cash “bonuses” to employees who provide proof of vaccination.  While such a voluntary system avoids many of the pitfalls of a mandatory system, it also carries its own complexities and risks in an already complicated and unsettled area of law.  This post examines some of those risks while also highlighting the unique uncertainty surrounding this emerging issue. 
Continue Reading Managing the risks of incentivizing COVID-19 vaccines for employees

On September 11, 2020, the U.S. Department of Labor (DOL) issued a new administrative rule concerning the Families First Coronavirus Response Act (FFCRA), a federal law that provides two forms of COVID-19-related paid time off to employees of businesses with fewer than 500 employees. The rule comes just over a month after a New York federal court rejected substantial portions of the agency’s prior FFCRA guidance in State of New York v. U.S. Department of Labor et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020). And while the new rule does include some revisions based on the court’s critiques, it mostly doubles down on several of the DOL’s prior interpretations of the FFCRA that were rejected by the Court. More particularly, in the new rule, the DOL:

  • Reaffirms that an employee may only take FFCRA leave if the employer has work available for the employee.
  • Reaffirms that intermittent FFCRA leave may only be taken with an employer’s approval.
  • Narrows the definition of the term “health care provider” (although still not as narrowly as that term is defined in other federal statutes).
  • Revises the FFCRA’s documentation requirement to provide that paperwork supporting the need for leave may be given “as soon as practicable” (as opposed to before the leave commences).

The new rule took effect on September 16, 2020 and will remain in place through December 31, 2020, when the FFCRA is set to expire.
Continue Reading DOL doubles-down on FFCRA rules (but amends others) in response to federal court decision

Illinois officially has made it easier for certain workers who contract COVID-19 to claim it is an occupational disease for purposes of collecting workers’ compensation. On June 5, 2020, Illinois Governor J.B. Pritzker signed into law House Bill 2455, which amends the Illinois Workers’ Occupational Diseases Act (820 ILCS 310/et seq.) with respect to such claims.

In April 2020, the Illinois Workers’ Compensation Commission passed an emergency rule creating this same rebuttable presumption, but quickly withdrew the rule after it was challenged in court.

This amendment (codified as Public Act 0633) creates a rebuttable presumption that the exposure to and contraction of COVID-19 by a “COVID-19 first responder or front-line worker” arises out of and in the course of the employee’s employment, and is causally connected to the hazards or exposures of the employee’s employment.
Continue Reading It’s official: Illinois law presumes COVID-19 is a workplace injury for essential workers

The Department of Labor’s (DOL’s) Wage and Hour Division recently issued three new opinion letters addressing the Fair Labor Standards Act’s (FLSA’s) sales exemptions. Two letters address the outside sales exemption, and the third addresses the retail or service establishment exemption.

FLSA2020-6: Do salespeople who travel to different locations to sell their employers’ products using their employers’ mobile assets qualify for the outside sales exemption?

The first opinion letter, FLSA2020-6, addresses whether salespeople who use “stylized” trucks to travel to high-population areas and events to sell products fall within the outside sales exemption of the FLSA.

Ordinarily, a position will qualify for the exemption only if (a) the employee’s primary duty is “making sales” to or “obtaining orders or contracts for services” from customers; and (b) the employee is “customarily and regularly engaged” in performing duties “away from the employer’s place or places of business.”  29 C.F.R. sections 541.500(a), 541.501, 541.502. The exemption includes not only sales work itself, but also “work performed incidental to and in conjunction with the employee’s own outside sales or solicitations.” 29 C.F.R. section 541.500(b).

In FLSA2020-6, the DOL concluded that the employees satisfy both requirements and are therefore exempt.Continue Reading Are your sales employees exempt? DOL provides guidance in three new opinion letters

In non-compete and trade secret litigation, key evidence of employee misconduct often comes to light through a forensic examination of the employee’s devices and accounts. These forensic reviews can identify suspicious activity, such as an employee forwarding information and documents to a personal email address, accessing large amounts of company files around the time of the employee’s resignation, or attaching flash drives and other external devices that may be used to misappropriate company files.

However, now that many companies have their employees working from home in response to the COVID-19 pandemic, employee actions that were typically considered “smoking guns” in the context of non-compete and trade secret litigation now could regularly be occurring in the work-from-home environment. It is not unusual to hear about employees working from home who have forwarded documents to their personal email accounts to print them from a home office printer, or who have used a personal or even a family member’s computer to work because they had technical difficulties with their company laptop. In other words, employees may now have more plausible excuses for actions that would normally be cause for concern, making it difficult for employers to evaluate whether company information is at risk.
Continue Reading Protecting confidential information in a work-from-home world

Last week, the Paycheck Protection Program Flexibility Act (PPPFA) was signed into law, becoming effective immediately. The PPPFA reforms the Paycheck Protection Program (PPP), which was passed under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, and is intended to improve the terms of PPP loans obtained by small businesses to help cover payroll and other costs during the COVID-19 crisis. Certain aspects of the new law, however, may make it more difficult for some businesses to obtain full loan forgiveness.

Employers who received PPP loans after the CARES Act went into effect as of March 27, 2020, soon ran into challenges. For instance, many found that the eight-week period covered by the loan was not enough to provide the financial relief needed to stay afloat. This was particularly true for employers whose businesses were shut down as a result of state orders. Others faced unavoidable reductions to their loan forgiveness amount under the PPP’s reduction rules, based on an inability to return to pre-pandemic workforce numbers by the PPP’s June 30, 2020, deadline.
Continue Reading PPP Flexibility Act – Stretching forgiveness requirements to benefit employers

On May 30, 2020, a U.S. district court judge issued an order that prevents certain provisions of a new rule governing election procedures from going into effect. However, employers should note that the National Labor Relations Board (NLRB) intends to implement all other portions of the new rule that the court’s order did not address, effective immediately.

The new rule, which the NLRB issued at the end of 2019, amended procedural revisions from 2014 related to the processing of union representation cases. Critics of the 2014 revisions argued that those revisions truncated the time frame between the filing of a petition and the preelection hearing, making it difficult to simultaneously meet various obligations triggered by the filing while also preparing for the hearing.

In many respects, the new rule marks a return to pre-2014 procedures and practices, and provides parties with additional time in multiple areas of the election process.

Continue Reading Judge denies implementation of portions of major union election rule changes